Sample Resolution

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Sample Resolution for United States Legislatures to Adopt

BE IT ENACTED THAT:

The current state of the law regarding divorce and custody of minor children is in fact implemented in a fashion that leads to constitutionally-prohibited violations of the rights of both children and parents within the United States in the aggregate, as the current code:

• Removes children from parent's direct care and control.
• Impermissibly denies children the right to the direct care, custody, and love of their natural parents in most cases without a finding of predicate harm.
• Impermissibly denies parents the right to make decisions about expenditures that further the interests of their children and transfers that control to another through the enactment and enforcement of the current "child support" laws within the several states.
• Operates in a manner that is biased against men as a gender in violation of the Constitutional requirement for equal protection under the law.
• Impermissibly violates a citizen's right to due process by assuming that allegations of criminal conduct such as physical and sexual abuse are proven prior to trial, and exacts punishment for alleged offenses which have not been proven.
• Impermissibly violates citizen's rights to due process of law by assigning increased obligations and oversight to divorced parties which do not exist for married parties, or those who adopt children in an unmarried state, in the care and raising of this nation's children.

Current research documents that children are less likely to do well in single-parent, mother-headed homes. Such children are more likely to have serious psychological problems, drop out of school, become involved in serious felonies before the age of 18, give birth out of wedlock, run away from home and quit school prior to graduation. All of these problems have been directly tied to the incidence of family breakup. Further, it is documented fact that women initiate nearly 75% of divorces, and that as many as 7 out of 10 are initiated against the expressed desires of their husbands.

As such it is the duty of the several state legislatures and Congress to discourage the destruction of families in the first place, and where such a result cannot be avoided, attempt to mitigate the damage to our children to the fullest extent possible.

To meet our duty of responsibility under the law for all parties with regards to the children of this nation we therefore must:

• Recognize that the current custody decisions handed down by the legal system do not grant custody - they remove custody from one or both parents. Since this results in the denial of one or both parent's civil rights and the civil rights of the children involved, such an adjudication is only permissible where criminal standards of proof can be cited. It is legally impermissible under the Constitution to remove an individual's civil rights without prior adjudication that a violation of the law has first taken place.
• Remove the financial incentives that currently exist for initiation of divorce.
• Remove the ability of either parent to be ejected from their home and their children's lives for any period of time without clear and convincing proof that this removal of a parent's rights is necessary to protect the children involved.
• Require couples contemplating marriage to have a full understanding of the consequences of divorce, including the consequences for any children they may produce.
• Seek to reduce conflict post-divorce by requiring divorcing couples to truly act in the best interest of their children. In short, this means removing the ability of one parent to effectively render the other a "visitor" or "uncle" to their children for either personal or financial reasons.

THE FOLLOWING LEGISLATION IS HEREBY PROPOSED IN ANY SUIT AT LAW WHERE DIVORCE, CUSTODY OR CHILD SUPPORT IS AT ISSUE:

SECTION A - CUSTODY

1. All biological parents are presumed equal under the law and shall have the right to be treated equally at the bar. It is hereby declared that children have the fundamental right to direct care and interaction of both biological or adoptive parents, and that parents have the fundamental right to equal parenting time, parental oversight, and direct care of their children. Such rights are declared and understood to be a fundamental liberty interest which governments may not intrude upon without first showing a compelling interest and/or predicate harm to the specific children involved.
2. In recognition of the fundamental rights set forth in Section A.1, joint legal and residential custody shall be presumptive, with an approximately 50/50 parenting time division. The court shall direct the parents to develop a parenting plan implementing this provision prior to trial, and shall impose such a plan should the parents be unable to agree between themselves.
3. Any court ordering a deviation from the above presumption must document those deviations in the judgment(s) or order(s) establishing the deviation under one of the following permitted exceptions:
   • The parents have privately agreed in a valid prenuptial, postnuptual, or other contractual document to a different custody arrangement under the provisions of Section A.4, and such agreement has been found to be in the best interests of the children.
• One or both parents has been found guilty, under criminal standards of proof, of a violation of the law which bears directly on the care and custody of the child or children involved, and for which the appropriate criminal penalty and rehabilitation proscribed at law have not been completed.
• Interim orders may proceed on the basis of an allegation of criminal conduct material to custody provided that an arraignment on the predicate charge or charges has taken place and with the provision that should the predicate charge be dismissed, or the defendant found not guilty, that this exception shall be immediately extinguished and the interim order shall be immediately re-heard as an emergency matter.
• A parent is found to be unfit for joint custody due to a current condition of mental illness, substance or alcohol abuse, mental disorder or physical incapacity.
• One or both parents have abandoned the children and their domicile, or have announced their intention, in a verified pleading or personal court appearance, to do so following the entry of the judgment contemplated by the court.
4. The courts shall recognize and give full faith and credit to all private agreements between the parties concerning child custody, support, and related matters, regardless of when said agreements are made (prenuptial, postnuptual, pre or post-conception) unless it finds that (1) the agreement is unconscionable, (2) that implementation would likely lead to the neglect of the child or children involved, or (3) is contrary to the public interest as expressed in Section A or B of this legislation. All such claimed agreements must be in written form. Should the court find such an agreement invalid it may impose the standard shared parenting time division as defined herein, but may not impose sole custody unless a deviation is permitted under Section A.3.
5. The word "visitation" shall be replaced with "parenting time" in all related and relevant sections of law.
6. No parent may violate the civil rights of the other to be an involved parent, or of the child to a full, continuing, custodial relationship with either parent by removing, or attempting to remove, the child or children from the metropolitan area where they reside at the time the parents separated or, in the case of unmarried couples, when the child or children were born. No parent may remove the child or children from the school district in which they are currently attending school, or the district where the child or children have attended school within the previous 180 days, without the written consent of the other parent. Any attempt to do so shall be treated as a willful abandonment of joint parenting under Section A.3 by the parent attempting removal and sole custody shall be awarded on a permanent basis to the other parent.
7. A parent who constructively interferes with a custody order such that the other parent is substantially deprived of their parenting time more than once in a calendar year, or more than three times in three years, shall be presumed to have abandoned joint parenting under Section A.3 and sole custody shall be awarded on a permanent basis to the other parent.
8. All existing custody and support orders may be re-litigated on an expedited basis under this section, provided that the parties reside in the same metropolitan area. All existing custody agreements with a differential in parenting time shall be presumptively invalid if entered into prior to the effective date of this legislation. A parent seeking to modify sole custody to joint residential custody under the presumptions of this section, and who does not reside in the same locale as the other parent and child, shall be required to first establish domicile in the locale where the other parent and child reside. An injunction shall issue upon the filing of a petition for modification enjoining the custodial parent from relocating during the pendancy of the case in these circumstances.
9. All attorneys of record shall be required to inform their clients prior to retention of the provisions of this section, including the penalties for interference with custody or attempted removal of the children from the metropolitan area or school district. Pro-se litigants shall file a notarized statement with their initial petition or response denoting their understanding of same, or shall be sworn in and enter into the record their recognition and understanding of these provisions upon initial appearance.

SECTION B - CHILD SUPPORT:

1. All joint residential custody arrangements adjudicated under Section A shall not contain a child support award for ordinary, customary, and routine living expenses, as both parents are presumed to be sharing said expenses in an equitable manner via their shared parenting agreement.
2. The Court may order support to be paid in the form of a qualified medical support order for the specific purpose of maintaining health insurance and providing for the payment of uninsured medical costs of the child or children. The actual cost of necessary health care shall be allocated equally to the parents.
3. A private support agreement, entered into by the parents as part of a variance of the presumptive nature of shared custody, shall be ratified and enforced by the Court unless the trial court finds that it is unconscionable, is likely to lead to the neglect of the child or children involved, or is in violation of the terms of this section of the law. Should the Court so find both custody and child support shall be set aside and remanded for renegotiation by the parties.
4. All private support agreements shall terminate automatically by statute upon emancipation of the child or children involved, except that a private agreement allocating the cost of post-secondary education beyond the age of majority is permitted.
5. All private support agreements shall include the terms and conditions upon which they may be re-negotiated or modified. No agreement may be accepted by the court which attempts to deny re-negotiation or modification upon a substantive change in the custody of the children or the earnings of either parent.
6. A private support agreement is inextricably tied to the residential status of the child or children involved. Should such an agreement's re-negotiation fail under Section B.5, the parties may re-litigate the full custody and support matter under the presumptions of both Section A and B of this legislation and both sections of the previous agreement (bearing on custody and support) shall be void.
7. In the event that support is ordered by the Court due to a Section A.3 exception to joint residential custody in a nonconsensual format (due to abandonment, incapacity, or conviction for a related criminal offense) the Court shall assess support against any absent parent (either or both) in an amount not to exceed the following percentages of net income for the number of children covered: (1) - 20%, (2) - 25%, (3) - 32%, (4) - 40%, (5) - 45%, (6 or more) - 50%. "Net income" is defined as the income from all sources less Federal, FICA and State income tax, mandatory retirement contributions, union dues, health insurance premiums, prior obligations of support or maintenance (including alimony in the instant case) and expenditures for repayment of debts or expenses that represent reasonable and necessary expenses for the production of income, preservation of life or health and reasonable direct expenditures for the child or other parent. The amount of support shall be stated in all such cases in dollars.
8. A rebuttable presumption exists that parents who are assessed support will comply with said orders. Only upon conviction for civil or criminal contempt of court in regards to compliance with such orders of support shall the court be authorized to attach, seize, or otherwise encumber any parent's assets (such as through wage garnishment, seizure of income tax refunds, or other process usually reserved for the enforcement of orders in contempt).
9. The state shall petition the Federal Government to permit and enforce the split of the dependent income tax deduction for all parents, and request that all parents who have and obtain joint custody under Section A be qualified for this tax relief. Until such relief is granted, all existing and new divorce decrees shall specify that the deduction shall be taken on alternative years by each parent, and that both parents will cooperate in signing the appropriate IRS forms to effect this deduction transfer.
10. No parent may be forced to pay child support beyond the point at which their children achieve the age of majority or emancipate themselves , including but not limited to post-secondary educational expenses.
11. If support is assessed under section B.7 both parents shall have a right of audit which may be exercised not more than once per calendar year. In such an audit the trustee for the child shall produce documentation sufficient to substantiate that the support ordered and paid was actually used only for the benefit of the child. The following determinations shall apply to said audits:
• Support shall be deemed "paid" if evidence of either (1) withholding from wages, or (2) encashment of privately delivered funds (ie: cancelled checks or bank statements documenting same) is produced.
• A portion of rent, mortgage, and utility costs shall be permitted only if the parent receiving the support has sole legal and physical custody of the child or children involved, with the other parent having the child or children in his or her care less than 20% of the time. If this inclusion is allowed it shall be determined as the incremental expense for the child or children in the household, measured by the actual incremental expense. For example, if two children share a bedroom, then the increment for rent shall be the incremental rent required over a comparable home (house or apartment) with one fewer bedroom. Real estate agents may be employed by the auditor as an expert witness to document reasonable incremental mortgage or rent payments in the area in which the child or children reside. Incremental utility use, exclusive of telephone, shall be rated at 15% per child with a cap at 50% of the utilities consumed. Telephone costs beyond basic line expense (ie: usage charges, long-distance, cellular or pager service, etc.) are disallowed.
• Food and other direct consumables shall be ratably apportioned over the number of persons in the household.
• The recipient of support is required to produce documentary evidence of the expenses claimed to be for the benefit of the child where such expenses are variable (ie: grocery register tapes, clothing, etc)
• Other direct expenses made only on behalf of the child for reasonable, ordinary and customary needs, exclusive of gifts, shall be permitted in the computation of actual expenses.
• Excluded from consideration shall be luxury or "designer" items of any kind, private or parochial school tuition, fees, or expenses, charitable contributions made on behalf of the child, elective transportation expenses (ie: automobile insurance, costs or payments for a vehicle driven by the child), voluntary expenses (eg: daycare expenses where the parent is not actually working, or is employed at a wage less than the cost of said daycare during the hours the child is in daycare) elective medical procedures and any expense otherwise separately paid (eg: health insurance, where a qualified medical child support order is in effect)
• The audit shall be performed in the offices of a certified public accountant (CPA), appointed under court direction, who shall render a written opinion to the court under this section as to the actual amount of money spent on the child or children under the definitions of this section. Included in this report shall be the amount and percentage of total expenditures for each major category of expense (ie; housing, food, clothing, school supplies, etc.) The CPA shall also render an opinion on the cooperation of the parties with the process and quality of documentation produced.
• The court shall then determine the reasonableness of the support award and any required adjustments as follows:
  • Willful failure to cooperate with the CPA or audit procedure shall be conclusive evidence of malfeasance on the part of the non-cooperative party and shall be an act of criminal contempt.
  • The court shall order the disclosure of both party's net income. Except for good cause shown, copies of the party's federal and state tax returns shall be determinative of net income. Either party shall have their income imputed by the court should it determine that a party is attempting to "hide" income or voluntarily evade their financial obligations.
  • The recipient of support is required to document that they are "matching" the received child support in ratable proportion to their income. This shall be determined by increasing the amount of support paid by the percentage of net income that the recipient has in comparison to the payor of support. For example, if the recipient has 50% of the net income of the payor, then the paid support amount shall be increased by 50%. If the recipient has 100% of the net income of the payor then the paid support amount shall be increased by 100% (twice the base value). This value shall be called "ANC", or "amount necessary for the children".
  • Should the court find that the amount spend on the child or children, per the audit opinion, falls within the range of 80% to 120% of the ANC, it shall take no action on the results of the audit and the costs of same shall be split equally between the parties.
  • Should the audit find that the amount spend on the child or children was less than 80% of the ANC the court shall order the amount of child support to be reduced for a period of 12 months by an amount such that that the paid-but-not-spent amount is recovered by the non-custodial parent over that 12 month period. Should this modification result in an order for less than zero dollars said time period shall be extended until the overpayment is fully refunded. At the end of this time period the order for support shall be issued to self-modify to an amount that shall prevent overpayment in the future. The court shall also order the recipient of support to pay all costs of the audit and court proceedings incident to the audit.
  • Should the audit find that the amount spent on the child was more than 120% of the ANC the court shall order an increase up to but not beyond the guideline amounts in this section sufficient to recover the underpayment within 12 months. If the modification would exceed statuatory guidelines then the amount of time said increase shall remain valid may be extended beyond 12 months as necessary. The court shall also order the payor of support to pay all costs of the audit and court proceedings incident to the audit.
12. All existing support orders shall be brought into compliance with these guidelines and rules upon petition to the court, or within two calendar years, which ever first occurs. An existing order or agreement made prior to the effective date of this legislation is presumptively void upon petition to the court by the payor of said agreement or order.

SECTION C - ABUSE AND NEGLECT ALLEGATIONS

1. No allegation of abuse in a divorce or custody case shall be given judicial notice except as provided for in Section A.3, and no order of protection may issue that impairs either parent's custody of the child or children involved unless the standards indicated in Section A.3 are met.
2. The issuance of an "ex-parte" order shall be denied unless it is accompanied by the filing of a criminal complaint and arrest of the suspect contemporary with the requested "ex-parte" order of protection. Dismissal or acquittal of the predicate charge(s) involved shall operate to immediately extinguish the order of protection and any temporary or permanent sole custody award as provided for in Section A.3.
3. A person bringing a false petition before a court, or making a false statement under oath, for the purpose of obtaining such a protective order shall be tried in accordance with the laws of the state in question for Perjury, and upon conviction shall suffer the penalties prescribed at law. Indictment, prosecution and conviction for such an offense shall be deemed a criminal offense relevant to the care and custody of the child or children at issue, and shall operate as constructive and permanent abandonment of joint custody under Section A.3.
4. A person bringing a petition for an ex-parte protective order before the court which is found to be insufficient, that is withdrawn, or where the defendant is acquitted or the charges are dismissed, shall be subject to civil suit at law for damages suffered by the defendant, including intentional infliction of emotional distress, false arrest and punitive damages if the respondent has been denied access to his or her children during the interim period. The accused parent may also bring an action for damages, including both emotional distress and punitive damages, on behalf of the minor child or children involved, and shall be deemed the custodian of any funds recovered under such an action for the benefit of the minor children so harmed.
5. Attorneys at bar for litigants in custody, divorce and support matters are required to inform their clients of the consequences of false or unsubstantiated pleadings under this section, including possible criminal and civil penalties along with the permanent loss of custody. All litigants shall provide their signature acknowledging this legislation as part of their retention agreements. Pro-se litigants shall be required to submit a notarized statement containing this section verbatim and their knowledge, acceptance and understanding of same.

SECTION D - FEE REQUESTS

1. No such request may be heard or granted (even on an interim basis) on a non-evidentiary basis, as doing so violates the respondent's right to due process of law and is contrary to settlement interests thereafter; thereby being presumptively in violation of the civil rights of the litigants and/or children involved.
2. Sufficient defenses to an attempted fee recovery petition shall include any of the following, individually or in combination. Should the court find that any of the below defenses apply it shall deny the fee petition:
   • That the fees were incurred to pursue non-responsive or inappropriate avenues of litigation, including but not limited to "fishing expeditions" during discovery.
   • That the fees were incurred in an attempt to violate the presumptive nature of custody in a divorce or custody proceeding as defined in this legislation, except where a valid exception under Section A.3 is proven at trial or by agreement of the parties. Should such an allegation be raised an interim order may be assessed. If the person bringing the fee petition does not prevail in the Section A.3 exception for any reason (including settlement) the fees assessed shall be remitted back to the payer along with interest from the date of payment at a rate three percentage points above the published prime lending rate in the locale where the action was heard.
   • That the petitioner had, under their control or ownership, sufficient assets or money to fund the litigation they pursued at or prior to the litigation's inception, and disposed of those assets or funds for other than necessary living expenses.
   • That the petitioner took any other action to prejudice their own earnings capacity and/or financial position that had a material impact upon their ability to afford said fees, including but not limited to charitable contributions, voluntarily leaving employment, being terminated from their employment for cause or transferring assets under their control to others.
3. Discovery shall be permitted prior to the hearing for any such petition to the extent necessary to prove or disprove any of the above sufficient defenses in D.2 above.
4. A person bringing a fee recovery petition that is denied under these provisions for any of the defenses in D.2 above shall pay the litigation costs incurred by both parties in pursuit and defense of the fee petition, including all discovery related costs.